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What responsibility to the producers of marijuana products have to inform their customers of the drug's effects?

Adapted from source image taken by Flickr user – Licensed via CC-BY-2.0

It’s not unusual to hear about a lawsuit that just sounds ridiculous and over the top. And the legal system certainly is plagued with frivolous and unnecessary lawsuits. But in some cases, when you dig past the tabloid headlines, there is a sound rationale for at least some of the arguments being made.

One such example was recently discussed on All Things Legal, regarding a lawsuit alleging that an edible marijuana-based product caused a man to kill his wife.

Did marijuana make a man murder his wife? (The answer is no.)

We’ll let Craig Ashton lead things off: “We’re going to be talking about a case in Colorado, where a man, Richard Kirk, shot his wife and blamed it on a marijuana brownie… he said that triggered the April 14th, 2014 shooting.

“What happened in this particular case is that the family is suing Gaia’s Garden LLC, which is a Nutritional Elements Inc. company, both in Denver where marijuana is legal for recreational purposes, saying that there was a failure to warn, quote, ‘The packaging and labeling for the potent candy contained no directions, instructions, or recommendations respecting the product’s proper consumption or use. The edible producers negligently, recklessly and purposefully concealed vital dosage and labeling information from their actual and prospective purchasers including Kirk in order to make a profit.’”

On its surface, the lawsuit is patently ridiculous in its claim that the marijuana edible triggered psychological effects that lead the perpetrator to kill his wife. Even on a technical level, the wrongful death suit is lacking, because as Tim Hodson explained, “When they did the toxicology report on him, he had less than half the legal limit for what’s basically a DUI for being under the influence of marijuana… he wasn’t even legally high, basically.” Thus, it’s highly unlikely that he consumed enough marijuana to have any appreciable effects, let alone a dose potent enough to cause the alleged side effects.”

Thus, it’s highly likely that the wrongful death suit will fall short. But that doesn’t mean that the case is completely without merit.

The underlying products liability case is a rational one.

While Tim ridiculed the chief argument of the case, he did feel that the secondary allegation did have merit: “The one part I agree with: There should be warning labels. If somebody’s selling you something, they should tell you at least what’s in the product. I have no problem with warning labels being put on these things, especially now that marijuana’s becoming big business, it’s becoming corporate business, it’s smart for these individuals and these corporations to shield themselves anyways. Say, ‘This is what I’m giving you; this is what’s in it.’”

Craig explained why such warning labels make legal sense, and why they are so common on seemingly innocuous and unthreatening products: “Essentially, what they’re arguing is that [the manufacturers] produced a product that is more dangerous than a reasonable consumer would expect, and based upon that [consumers] need a warning.’”

Thus, while the wrongful death allegation is without merit, the manufacturer is at fault, to a certain degree.

When at item has risks that aren’t immediately apparent, then a warning is necessary.

To clarify Craig’s point: An item that poses relatively little danger may require a warning label because that level of danger exceeds what would be obvious to a potential consumer. This is why a chocolate Kinder egg requires a warning label indicating that there is a toy inside the candy egg—because a child could choke on the toy—while a kitchen knife does not. A kitchen knife doesn’t require a warning label because it’s immediately evident that it’s sharp, and thus dangerous, simply by virtue of its intended function: to cut.

Craig continued: “So there are certain products where it’s not more dangerous than a reasonable consumer would expect, because you expect the knife to be sharp. But the problem with edibles, according to those who have recounted their experiences, is that sometimes the dosage is not what you’d expect…

“Maureen Dowd, who is a great op-ed writer for the New York Times… said that she ate a pot-laced candy bar, quote, ‘that looked so innocent like the Sky Bars I used to love as a kid.’ Later that night she was panting and curled up inside a hotel in Denver, quote, ‘convinced that I had died and no one was telling me.’

However, it is not the responsibility of manufacturers to painstakingly detail all possible consequences.

The conversation then shifted to the difficulty of finding a balance between due diligence by manufacturers and consumer responsibility. As Craig put it, “If you don’t know exactly how much THC is in a product, and you take it, and you have an adverse effect, the argument [can be made that a manufacturer of such products should explain to consumers] what’s in it, what can [they] expect, [and] what should [they] not do [while under the influence]. You know, do not drive a car, do not fly a plane…”

Ed raised the question of how consumers could determine safe versus unsafe consumption. Drinkers have some idea of how the effects of beer differ from those of high proof alcohols, even if very little of the latter is consumed. But even if marijuana products indicate exactly how much marijuana they contain, how could marijuana users determine appropriate consumption rates?

Craig’s response was that consumers would need to educate themselves about appropriate dosages for marijuana, and what behaviors are potentially unsafe while under the influence, much in the same way that people who drink alcohol typically understand the consequences of drinking different types and concentrations of alcohol. An experienced imbiber will know that something labeled ‘100 Proof’ should not be downed like a beer, even if the label doesn’t explain in painstaking detail what the consequences are of drinking large amounts of high-proof alcohol. However, that modicum of warning—the information about the alcohol content of the beverage—is necessary, and it would be negligent to not include it on the label.

In much the same way, producers and sellers of marijuana products aren’t responsible for detailing all the possible consequences of consuming those products. However, they do have a responsibility to provide enough information on the packaging so that educated consumers can properly protect themselves. And it is in this respect that the Colorado case has some merit, even if the motive for the lawsuit is largely ridiculous.

 

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